Defendant is not required to obtain a certificate of probable cause (CPC) before appealing a trial court’s denial of a Penal Code section 1016.5 motion to vacate a plea. Arriaga pled guilty to possessing a sawed-off shotgun in 1986. Years later federal authorities sought Arriaga’s deportation based on this conviction. He filed a motion to vacate the plea based on the court’s failure to give the advisements regarding the immigration consequences required by section 1016.5. The trial court denied the motion, finding by a preponderance of the evidence that Arriaga was properly advised. He appealed without seeking a CPC. The Court of Appeal rejected the Attorney General’s contention that the appeal should be dismissed for lack of a CPC, as well as the defense claim that the standard of proof regarding advisement is clear and convincing evidence. Both petitions for review were granted. Held: Affirmed. Under Penal Code section 1237, subdivision (a), the right to appeal after a plea is limited by Penal Code section 1237.5’s CPC requirement. However, the right to appeal the denial of a section 1016.5 motion to vacate a conviction is governed by section 1237, subdivision (b), which authorizes appeal from any order after judgment affecting the substantial rights of the party, and is not conditioned on first obtaining a CPC.
The standard of proof required to rebut the presumption of nonadvisement imposed by section 1016.5 is preponderance of the evidence. Section 1016.5, subdivision (b) states that absent a record that the advisement was given, there is a presumption of nonadvisement. This presumption, which affects the burden of proof, applied in Arriaga’s case because the reporter’s transcript of the plea colloquy had been destroyed and the minute order from the hearing did not detail the actual advisement given. Section 1016.5 does not specify the standard of proof that the prosecution must meet to rebut the presumption. In this case, the court concluded that the preponderance of the evidence standard applies. Evidence Code section 115 sets forth the three standards of proof and states that the preponderance of the evidence standard applies except as otherwise provided by law. Where the Legislature has not established a standard of proof, a court will determine the standard after considering all aspects of the law, including the gravity of the consequences that would result from an erroneous determination of the issue involved and the nature and purpose of the proceedings. Although noncitizen defendants have a substantial right to complete immigration advisements, the nature of a hearing on a section 1016.5 motion to vacate, which is a collateral attack on a final judgment of conviction, weighs in favor of a preponderance standard. The defendant has already admitted the offense and bears the ultimate burden of proving entitlement to relief. Additionally, the government has a strong interest in the finality of judgments. Here, the prosecution rebutted the presumption by presenting evidence that it was the practice of the prosecutor assigned to Arriaga’s case in 1986 to always advise a defendant of the immigration consequences of a plea.